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In a blow to the efforts of municipal plaintiffs to pursue environmental damages through product liability theories, a Washington federal court granted Monsanto’s motion to dismiss Seattle’s design defect and failure to warn claims for damages to the city’s waterways and lands caused by polychlorinated biphenyls (PCBs). See City of Seattle v. Monsanto Co., 16-cv-00107 (W.D. Wash. Feb. 22, 2017). The court, however, allowed the city’s negligence and public nuisance claims to proceed.

Seattle brought suit against Monsanto in January 2016 based on Monsanto’s manufacture, advertisement and sale of PCBs from 1935 to 1979. The city alleged public nuisance, defective design, failure to warn, negligence, and equitable indemnity based on the alleged harm to Seattle’s land and the alleged cost the city incurred in studying and remediating PCB contamination on its property.

The court dismissed Seattle’s product liability claims under both the defective design and failure to warn theories for lack of standing. Such claims could only be brought by a user or consumer, the court held, and Seattle is neither user nor consumer. The court also rejected Seattle’s equitable indemnity claims, reasoning that while Seattle alleged that some contamination resulted from Monsanto’s actions, Monsanto could not fairly be forced to indemnify Seattle for all damages because other defendants might be responsible for portions of the contamination.

The court allowed other claims to go forward. It upheld a negligence claim based on allegations that Monsanto continued to manufacture and sell PCBs with its knowledge of toxicity concerns regarding the chemical. The court also upheld Seattle’s novel public nuisance claim, noting that “Seattle does not need to own the contaminated water to bring a public nuisance claim” because “Seattle is injured when it suffers financial loss due to toxic contamination,” which in this case resulted from chemical deposition upon Seattle’s land. Seattle properly pleaded causation by alleging that Monsanto knew that PCBs would end up in the environment.